Markovic and Others v. Italy [GC]

Information Note on the Court’s case-law No. 92

December 2006

Markovic and Others v. Italy [GC] - 1398/03

Judgment 14.12.2006 [GC]

Article 6

Civil proceedings

Article 6-1

Access to court

Jurisdiction declined as the impugned NATO air strike had to be considered an act of war and as there was no express right to claim reparation from the State for damage sustained as a result of a violation of the rules of international law: no violation

Article 1

Responsibility of states

“Jurisdictional link” existed between foreign plaintiffs and the respondent State, even when the proceedings concerned events in the plaintiffs' country of origin: Government's preliminary objections dismissed

Facts: The ten applicants are all nationals of the former Serbia and Montenegro and close relatives of persons killed during a NATO air strike on the headquarters of Radio Televizije Srbije (RTS) in Belgrade in April 1999. The applicants brought an action in damages in the Italian courts in respect of the deaths of their relatives. The applicants considered that Italy's involvement in the relevant military operations had been more extensive than that of the other NATO members in that Italy had provided major political and logistical support, such as the use of its air bases. The defendants to the action were the Prime Minister's Office, the Italian Ministry of Defence and the NATO Allied Forces Southern Europe Command. The Prime Minister's Office and the Italian Ministry of Defence applied to the Court of Cassation for a preliminary ruling on the issue of jurisdiction. In 2002 it held that the Italian courts had no jurisdiction because Italy's decision to take part in the air strikes had been a political one and could not, therefore, be reviewed by the courts. Moreover, the legislation that gave effect to the instruments of international law which the applicants relied on did not expressly afford injured parties a right to claim reparation from the State for damage sustained as a result of a violation of the rules of international law.

Law: Exhaustion of domestic remedies – The respondent Government had argued that the applicants had not exhausted domestic remedies as they had failed to resume proceedings against NATO. The Court found no concrete example of a civil action having been successfully brought against NATO and was not convinced by the Government's argument that the proceedings against NATO would have offered better prospects of success than those against the Italian State.

Whether the applicants came within the “jurisdiction” of the respondent State within the meaning of Article 1 of the Convention – Once the applicants had brought a civil action in the Italian courts, there was an indisputable “jurisdictional link” between them and the Italian State for the purposes of Article 1.

Article 6 – The Court of Cassation's ruling did not amount to recognition of immunity, but was merely indicative of the extent of the courts' powers of review of acts of foreign policy such as acts of war. The applicants' inability to sue the State was the result not of immunity but of the principles governing the substantive right of action in domestic law. At the relevant time, the position under the domestic case-law was such as to exclude in this type of case any possibility of the State being held liable. Consequently, the applicants' claims had been fairly examined in the light of the Italian legal principles applicable to the law of tort. The applicants had been afforded access to a court, but that access had been limited in scope, as it did not enable them to secure a decision on the merits.

Conclusion: no violation (ten votes to seven).

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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